# Ramesh Chandra Dutta v. The State

- **Citation:** (2019) 3 ILRA 91
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** U/S 482/378/407 No. 7614 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-dutta-v-the-state-44874
- **Pages:** 4

## Headnote

A. Criminal Law-Criminal Procedure
Code, 1973 - Section 223 Cr.P.C.;
Section 13(1)(d) of the Prevention of
Corruption Act, 1988 - Summoning for
framing of charge against a non-public
servant, with the aid of Section 120-B of
IPC - who has not committed any
offence under Section 13 (2) read with
Section 13 (1) (d) of the Prevention of
Corruption Act,1988 along with coaccused Public Servant who is said to
have committed such offence - No
charge framed earlier under the P.C. Act
- Matter remanded back to the trial court
which
shall
consider
the
settled
proposition of law as per the Cr.P.C. and
judgement of Hon'ble Supreme Court in
State through CBI New Delhi vs. Jitender
Kumar Singh, (2014) 11 SCC724. (Para 9)

Application u/s 482 Cr.Pc accordingly
disposed of. (E-3)

List of cases cited: -

## Text

3 All. Ramesh Chandra Dutta Vs. The State
91

5. I have also noted one fact that
wrong fact regarding submission of the
charge sheet has been placed before this
Court when Bail No.1191 of 2019 was
being opposed inasmuch as the charge
sheet was not filed on 13.5.2019, even the
charge sheet has not been filed till date
and now since those sections have been
expunged, there is no question of filing
charge sheet.

6. It appears that in the given
circumstances, detention of the present
petitioner is prima facie illegal and while
rejecting the application of the present
petitioner, learned court below should
have
considered
these
facts
and
circumstances
vis-a-vis
the
legal
provision including the dictums of the
Hon'ble Supreme Court carefully. Prima
facie, it appears that no such things have
been considered and perused by the
learned court below while rejecting the
application of the petitioner on 4.10.2019,
therefore, I find that the order dated
4.10.2019 is not sustainable in the eyes of
law and liable to be set aside.

7. Accordingly, I hereby set aside
the order dated 4.10.2019 passed by the
learned court below in Case Crime
No.5/2018,
Police
Station
-
ATS,
Lucknow.

8. I hereby remand this matter to the
learned court below to pass a fresh order
considering the aforesaid facts and
circumstances as well as the legal
proposition of law including the dictum of
the Hon' ble Apex Court on the subject
and reasoned and speaking order be
passed, with expedition, preferably within
a period of fifteen days from the date of
production of certified copy of the order
of this Court.

9. The petition is accordingly
disposed of.
----------
(2019)11ILR A91

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.10.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN , J.

U/S 482/378/407 No. 7614 of 2019

Ramesh Chandra Dutta ...Applicant
Versus
The State ...Opposite Party

Counsel for the Applicant:
Sri Pranshu Agarwal, Sri Raghvendra Pandey.

Counsel for the Opposite Party:
A.S.G.

A. Criminal Law-Criminal Procedure
Code, 1973 - Section 223 Cr.P.C.;
Section 13(1)(d) of the Prevention of
Corruption Act, 1988 - Summoning for
framing of charge against a non-public
servant, with the aid of Section 120-B of
IPC - who has not committed any
offence under Section 13 (2) read with
Section 13 (1) (d) of the Prevention of
Corruption Act,1988 along with coaccused Public Servant who is said to
have committed such offence - No
charge framed earlier under the P.C. Act
- Matter remanded back to the trial court
which
shall
consider
the
settled
proposition of law as per the Cr.P.C. and
judgement of Hon'ble Supreme Court in
State through CBI New Delhi vs. Jitender
Kumar Singh, (2014) 11 SCC724. (Para 9)

Application u/s 482 Cr.Pc accordingly
disposed of. (E-3)

List of cases cited: -

1. St. through CBI New Delhi Vs Jitender
Kumar Singh, Criminal Appeal No.943 of
92 INDIAN LAW REPORTS ALLAHABAD SERIES
(2008) with Criminal Appeal No.161 of (2011),
(2014)11SCC724

(Delivered by Hon'ble Rajesh Singh
Chauhan, J. )

1. Heard Sri Pranshu Agrawal,
learned counsel for the petitioner and Sri
S.B. Pandey, learned Senior Advocate
assisted by Sri Kazim Ibrahim, Advocate
for the C.B.I.

2. By means of this petition, the
petitioner has assailed the order dated
11.10.2019 by means of which the
application (B-37) filed by the petitioner
in the court below for transmitting the
record of case to the court of Chief
Judicial Magistrate, Lucknow on the
ground that the learned court below may
not try the offences committed on various
sections of Prevention of Corruption Act.

3. Sri S.B. Pandey, learned Senior
Advocate has opposed the aforesaid prayer of
the petitioner referring the provisions of
Section 223 of Cr.P.C., which categorically
explains about the persons who may be
charged jointly. Section 223 (d) Cr.P.C.
provides that the persons may be charged and
tried together if those are accused on different
offences committed in the course of some
transactions. Therefore, the petitioner may be
charged along with Branch Manager, namely,
Vijay Kumar Nagar, who is said to have
committed an offence under Sections 13 (2)
of Prevention of Corruption Act and as the
present petitioner is co-accused so invoking
the provisions of Section 120-B I.P.C. the
joint trial of the present petitioner with Sri
Vijay Kumar Nagar is permissible as per
Section 223 Cr.P.C.

4. Learned counsel for the petitioner
has submitted that undisputedly the
present petitioner is a private person and
is not serving in any government/nongovernment organisation/ instrumentality
of the State. Therefore, he may not be
treated as a "Public Servant" in any
manner whatsoever. The trial under the
Prevention of Corruption Act is meant for
"Public Servant" who has committed any
offence under the said Act.

5. Sri Pranshu Agrawal, learned
counsel for the petitioner has further
submitted that even by invoking Section
120-B I.P.C. no one can be charged and
tried under various sections of Prevention
of Corruption Act if the person is not a
"Public
Servant".
He
has
further
submitted that by means of impugned
order, the petitioner has been summoned
for framing of the charges and view of the
learned court below is that the charges
against the petitioner may be framed
under Section 13 (2) of Prevention of
Corruption Act read with Section 120-B
I.P.C.

6. Sri Pranshu Agrawal has placed
reliance upon the dictum of Hon'ble
Supreme Court in re: State through CBI
New Delhi vs. Jitender Kumar Singh
rendered in Criminal Appeal No.943 of
2008 with Criminal Appeal No.161 of
2011, which has been decided by Hon'ble
Supreme Court on 05.02.2014. The
relevant para-45 is being reproduced
here-in-below:-

"45. We may now examine
Criminal Appeal No. 161 of 2011, where
the FIR was registered on 2.7.1996 and
the charge-sheet was filed before the
Special Judge on 14.9.2001 for the
offences under Sections 120B, 420 IPC
read with Sections 13(2) and 13 (1) of the
PC Act. Accused 9 and 10 died even
3 All. Ramesh Chandra Dutta Vs. The State
93
before the charge-sheet was sent to the
Special Judge. The charge against the
sole public servant under the PC Act
could also not be framed since he died on
18.2.2005. The Special Judge also could
not frame any charge against non-public
servants. As already indicated, under subsection (3) of Section 4, the special Judge
could try non-PC offences only when
"trying any case" relating to PC offences.
In the instant case, no PC offence has
been committed by any of the non-public
servants so as to fall under Section 3 (1)
of the PC Act. Consequently, there was no
occasion for the special Judge to try any
case relating to offences under the PC Act
against the Appellant. The trying of any
case under the PC Act against a public
servant or a non-public servant, as
already indicated, is a sine-qua-non for
exercising powers under sub-section (3)
of Section 4 of PC Act. In the instant case,
since no PC offence has been committed
by any of the non- public servants and no
charges have been framed against the
public servant, while he was alive, the
Special Judge had no occasion to try any
case against any of them under the PC
Act, since no charge has been framed
prior to the death of the public servant.
The
jurisdictional
fact,
as
already
discussed above, does not exist so far as
this appeal is concerned, so as to exercise
jurisdiction by the Special Judge to deal
with non-PC offences."

7. Heard learned counsel for the
parties and perused the material available
on record.

8. Since the learned counsel for the
parties are agreeable that the matter may
be decided finally at the admission stage,
therefore, I hereby decide the matter
finally.

9. As per the material available on
record, the present petitioner is nonpublic servant and has not prima facie
committed any offence which could
attract the provisions of Section 13 (2)
read with Section 13 (1) (d) of the
Prevention of Corruption Act, however,
he is a co-accused with Mr. Vijay
Kumar Nagar, the Branch Manager,
who is said to have committed such
offences. The consideration would have
been different had the charges under
various
sections
of
Prevention
of
Corruption Act been framed against the
petitioner earlier but admittedly no
charges
under
those
sections
of
Prevention of Corruption Act have been
framed and the petitioner has been
summoned by the learned trial court for
framing the charges. Therefore, before
framing
the
charges
against
the
petitioner under Section 13 (2) read
with Section 13 (1) (d) of Prevention of
Corruption Act, the learned court below
shall consider the settled proposition of
law on the point as per the Cr.P.C. and
also in view of the dictum of Hon'ble
Supreme Court in re: Jitender Kumar
Singh (supra) as to whether the
petitioner may be charged under Section
13 (2) read with Section 13 (1) (d) of
Prevention of Corruption Act invoking
the provisions of Section 120-B I.P.C.
when undisputedly the petitioner is not
a "Public Servant". Learned counsel for
the Prosecution may also cite some case
laws and legal provisions before the
learned court below to satisfy the court
as per their point of view. Such
satisfaction of the learned court below
should be speaking and reasoned one.

10. In view of the aforesaid terms,
the petition is disposed of.
----------
94 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A94

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.04.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Application No.8318 of 2003
u/s 482 Cr.P.C.

Virendra Kumar Jha ...Applicant
Versus
Civil
Judge
Junior
Division,
Shahjahanpur & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Praveen Kumar Srivastava, Sri Sushil
Kumar Srivastava, Sri Mohit Singh.

Counsel for the Opposite Parties:
A.G.A., Sri C.B. Prasad, Sri J. Habib, Sri Javed
Habib, Sri R.L. Verma, Sri V.K. Dwivedi.

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C.- Section 200
and 202 Cr.P.C - Procedure to entertain
a
complaint
case
is
mandatory.
Magistrate rejected police report and
took cognizance under Section 190(1)(c)
Cr.P.C. relying on affidavits filed before
him by the complainant along with
Protest
Petition
-
Not
legal
and
permissible for the Magistrate to adopt
that procedure.

If Magistrate finds lack of material with
investigation of Police, option available to him
is to take into account original complaint and
follow procedure prescribed in Section 200
and 202 for taking cognizance-Magistrate
cannot
mix-up
the
material
placed
by
complainant along with Protest Petition to take
cognizance after rejecting Police Report but
without following the procedure prescribed
under Chapter 15. (Para 14,16,22, 29)

B. Criminal Law -Code of Criminal
Procedure, 1973 - Cognizance under
Section 190(1)(c) Cr.P.C - Magistrate has
not given any reason for rejecting Police
report - Approach contrary to law and
cannot be sustained.

Application u/s 482 Cr.P.C allowed (E-3)

List of cases cited: -

1. Tula Ram Vs Kishore Singh AIR (1977) SC 2401

2. M/s India Carat Pvt. Ltd. Vs St. of Kar.
(1989) (26) ACC 280 (SC)

3. Gangadhar Janardan Mhatre Vs St. of Mah.
& ors. (2004) (7) SCC 768

4. Rakesh & anr. Vs St. of U.P. & anr. (2014)
(13) SCC 133

5. Minu Kumari & anr. Vs St. of Bih. & ors.
(2006) (4) SCC 359

6. Sunil Bharti Mittal Vs C.B.I., (2015) (4) SCC
609

7. Pakhando & ors. Vs St. of U.P. (2001) (43)
ACC 1096

8. Mohammad Yusuf Vs St. of U.P. (2007) (9)
ADJ 294

9. Kallu & ors. Vs St. of U.P. (2010) (69) ACC
780

10. Mitrasen Yadav Vs St. of U.P. (2010) (69)
ACC 540

11. Criminal Rev. No. 1601 of (2015), Mukeem
7 2 ors. Vs St. of U.P. & anr., decided on
07.08.2015

12. Writ Petition- Misc. Single No. 3776 of
(2012), Md. Shafiq Khan & ors. Vs St. of U.P.
& ors., decided on 24.03.2014
(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Heard Sri Praveen Kumar
Srivastava, Advocate, holding brief of Sri
Sushil Kumar Srivastava, learned counsel
for applicant and learned AGA for State.